DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 14 and 15 are objected to because of the following informalities:
The parent claim 13 specifies the body component is disposable, while the depending claims 14 and 15 require the same body component to now be washable creating a possible conflict. As a result, it is the office’s position that anything can be disposable even if it is intended to be washed and reused as most products have a limited lifespan. The converse is also true as a typically disposable item like a paper towel or baby wipe or even pad can accidently be washed (and even reused with variable success) but are not intended to be. The applicant is encouraged to amend the claim as desired or to further specify materials.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 3-4, and 13-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112, second paragraph.
Regarding claims 3 and 4, Applicant is reciting an apparatus (pad) and a method (method of using the pad by throwing thew pad away / washing respectively) in the same claim and in such a way as to raise question as to whether the claim is directed to a system or to a method, such that it is apparent that the applicant is attempting to cover both in the same claim. Ex parte Lyell, 17 USPQ2d 1548 (BPAI 1990).
An individual claim should recite either an apparatus or process (or method). In this case, claims 3 and 4 refers to both the apparatus as to a pad and the method for using the pad thus the Office is unclear which invention applicant is intending to cover. The claims have been examined to be directed to the apparatus.
Regarding claim 13, Applicant is reciting an apparatus (pad) and a method (method of using the pad by throwing the pad away) in the same claim and in such a way as to raise question as to whether the claim is directed to a system or to a method, such that it is apparent that the applicant is attempting to cover both in the same claim. Ex parte Lyell, 17 USPQ2d 1548 (BPAI 1990).
An individual claim should recite either an apparatus or process (or method). In this case, claim 13 refers to both the apparatus as to a pad and the method for using the pad thus the Office is unclear which invention applicant is intending to cover. The claims have been examined to be directed to the apparatus
Claims 14-19 are also rejected as they depend from a rejected claim.
Regarding claims 15-17, it is unclear what the applicant intends as the parent claim 13 requires the pan component to be integral while the depending claims require the pad component to be separable or removable which is opposite to integral. For the purposes of the compact prosecution the Examiner understands the term integral to mean the pad and body component are meant to be used together.
Claim 16 contains the trademark/trade name Velcro. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe hook and loop fastener and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 5, and 8-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Coleman US 2005/0090796 A1.
Regarding claim 1, Coleman discloses a period pad device that provides a user with a modified undergarment with an integrated pad for protecting against bodily fluid stains (abstract), the period pad device comprising: a body component (10- panty, fig 1 and [0034]) comprising a fabric component ([0019] and [0035 which note the panty/ garment is made from fabric) and a pad component (16- pad, fig 1 and [0034]); wherein the pad component is secured to a crotch position of the fabric component ([0043]); and further wherein the body component is worn as a conventional undergarment and prevents bodily fluid from staining clothing ([0010] and [0011] which note the garment is wore like conventional undergarments and collect bodily fluid to prevent leaking).
Regarding claim 5, Coleman discloses wherein the pad component is removably fastened inside of the fabric component ([0043]).
Regarding claim 8, Coleman discloses wherein the body component comprises a compressible component that is positioned above a waistband of the body component and is made of compressible material and fully wraps around a user’s stomach ([0013] which notes a wide elastic band to provide compression and comfort.
Regarding claim 9, Coleman discloses wherein the compressible component comprises a small pocket, which can hold a portable heating pad ([0014] and [0038] which discloses the addition of a pocket for a heating or cooling pad).
Regarding claim 10, Coleman discloses wherein the pad component, when removable, is surrounded by elastic bands at the front and back of the crotch position of the body component which keep the pad component in place ([0043] which discloses the pad is removable and retained by elastic bands).
Regarding claim 11, Coleman discloses wherein the body component comprises a front side, a back side secured together at the crotch position, with two leg openings, and an elastic waistband ([0034], [0043], and [0013] and fig 1 which discloses the panty has front and rear section joined in the middle to form a crotch or middle section with two leg openings and an elastic waist).
Regarding claim 12, Coleman discloses the period pad device further comprises a plurality of indicia (see lines on fig 1) (indicia or printed matter has not been further defined so while it could provide critical information and have patentable weight it could also simply an aesthetically pleasing pattern and as such not given patentable weight see MPEP 2111.05 I. A.)
“To be given patentable weight, the printed matter and associated product must be in a functional relationship. A functional relationship can be found where the printed matter performs some function with respect to the product to which it is associated. See Lowry, 32 F.3d at 1584, 32 USPQ2d at 1035 (citing Gulack, 703 F.2d at 1386, 217 USPQ at 404). For instance, indicia on a measuring cup perform the function of indicating volume within that measuring cup. See In re Miller, 418 F.2d 1392, 1396, 164 USPQ 46, 49 (CCPA 1969). A functional relationship can also be found where the product performs some function with respect to the printed matter to which it is associated. For instance, where a hatband places a string of numbers in a certain physical relationship to each other such that a claimed algorithm is satisfied due to the physical structure of the hatband, the hatband performs a function with respect to the string of numbers. See Gulack, 703 F.2d at 1386-87, 217 USPQ at 405. “
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Regarding claim 20, Coleman discloses A method of protecting regular undergarments and outerwear from bodily fluid stains, the method comprising the following steps:
providing a combination undergarment and sanitary pad capable of absorbing bodily fluids during the menstrual cycle ([0011]);
wearing the device during the day of the menstrual cycle as a conventional undergarment ([0011]);
securing the device to a user via stepping into the leg openings of the body component; pulling up the body component to position the pad component in place (while Coleman allows for side opening for easy on and off for a recumbent patient the garment can be clearly stepped into like normal panties, see fig 7); and
taking off the device and disposing of it in the proper form (a disposable device will inherently be removed and disposed of at some point).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 2-4, 6-7, 13-19 are rejected under 35 U.S.C. 103 as being unpatentable over Coleman US 2005/0090796 A1 in view of Coates US 2005/0022291 A1.
Regarding claim 2, Coleman fails to disclose. wherein the pad component is sewn into the crotch position of the fabric component.
Coleman does disclose securing the pad using bands [0043].
Coates teaches a protective undergarment thereby being in the same field of endeavor as the instant claims. Coates discloses the pad can be sewn into the garment [0031] or secured using elastic bands [0029].
It would have been obvious for one of ordinary skill in the art before the effective filing date to have sewn the pad to the crotch instead of using bands as taught by Coates. Coates teaches two attachment means (sewing and bands) and the band attachment is the same attachment means as Coleman making this is a simple substitution of one known element for another to obtain predictable results. Alternatively, this could be viewed as an “obvious to try” given the identified, predictable solutions with a reasonable expectation of success.
Regarding claim 3, Coleman discloses wherein the body component is made of disposable material and thrown away after use ([0016] and [0034] which notes the garment as a whole is disposable).
Regarding claim 4, Coleman fails to specifically disclose wherein the body component is composed of washable material and washed clean after each use. However, Coleman discloses the body component is made from fabric material such as cotton instead of paper ([0018-0020] and [0035-0036] note the garments construction of fabric and therefore could be washed).
Regarding claim 6, Coleman discloses wherein the pad component is made of disposable material ([0016] and [0034] which notes the garment as a whole is disposable). Coleman fails to specifically disclose the fabric component is made from washable material. However, Coleman discloses the body component is made from fabric material such as cotton instead of paper ([0018-0020] and [0035-0036] note the garments construction of fabric and therefore could be washed).
Regarding claims 4 and 6:
Coates teaches a protective undergarment thereby being in the same field of endeavor as the instant claims. Coates teaches the garment and pad can be fully washable or disposable [0031]. Fully is emphasized by the Examiner because Coates later teaches the pad maybe disposable or reusable [0047] thereby teaching fully disposable or reuseable or a combination of the two.
It would have been obvious to one or ordinary skill in the art before the effective filing date to have made the garment to be disposable or reuseable or a combination of the two as it is known in the art to do so taught by Coates. Furthermore, not everyone wants to wash a soiled item or carry around a soiled item until they can wash it so disposable options have certain conveniences. On the reverse some people are concerned about waste and want a reuseable option to lessen their environmental impact. The combination article become a middle ground those that are in between.
Regarding claim 7, Coleman fails to teach wherein the pad component is fastened into the body component with hook and loop fasteners.
Coates teaches a protective undergarment thereby being in the same field of endeavor as the instant claims. Coates discloses the pad can be attached to the garment using any known means in [0029] and in [0032] Coates provides a list of known attachment means to include hook and loop fasteners.
It would have been obvious to one of ordinary skill in the art to have substituted one known fastening mean for another known fastening with a reasonable expectation of success while obtaining predictable results.
Regarding claim 13, Coleman discloses a period pad device that provides a user with a modified undergarment with an integrated pad for protecting against bodily fluid stains, the period pad device comprising: a body component (10- panty, fig 1 and [0034]) comprising a fabric component ([0019] and [0035 which note the panty/ garment is made from fabric) and a pad component (16- pad, fig 1 and [0034]) which is integrated into the fabric component (the pad is attached in the panty which is made from fabric [0034-35] and [0043]); and wherein the body component comprises a front side, a back side secured together at the crotch position, with two leg openings, and an elastic waistband ([0034], [0043], and [0013] and fig 1 which discloses the panty has front and rear section joined in the middle to form a crotch or middle section with two leg openings and an elastic waist) ; wherein the body component is shaped and worn in the fashion of conventional undergarments (fig 1 and [0013]); wherein the pad component is integrated into the fabric component ([0043]), and further wherein the body component is composed of disposable material and thrown away after use ([0034]).
Coleman fails to disclose. wherein the pad component is sewn into the crotch position of the fabric component.
Coleman does disclose securing the pad using bands [0043].
Coates teaches a protective undergarment thereby being in the same field of endeavor as the instant claims. Coates discloses the pad can be sewn into the garment [0031] or secured using elastic bands [0029].
It would have been obvious for one of ordinary skill in the art before the effective filing date to have sewn the pad to the crotch instead of using bands as taught by Coates. Coates teaches two attachment means (sewing and bands) and the band attachment is the same attachment means as Coleman making this is a simple substitution of one known element for another to obtain predictable results. Alternatively, this could be viewed as an “obvious to try” given the identified, predictable solutions with a reasonable expectation of success.
Regarding claim 14, Coleman fails to specifically disclose wherein the body component is composed of washable material and. However, Coleman discloses the body component is made from fabric material such as cotton instead of paper ([0018-0020] and [0035-0036] note the garments construction of fabric and therefore could be washed).
Regarding claim 15, Coleman discloses wherein the pad component is made of disposable material ([0016] and [0034] which notes the garment as a whole is disposable). Coleman fails to specifically disclose the fabric component is made from washable material. However, Coleman discloses the body component is made from fabric material such as cotton instead of paper ([0018-0020] and [0035-0036] note the garments construction of fabric and therefore could be washed).
Regarding claims 14 and 15:
Coates teaches a protective undergarment thereby being in the same field of endeavor as the instant claims. Coates teaches the garment and pad can be fully washable or disposable [0031]. Fully is emphasized by the Examiner because Coates later teaches the pad maybe disposable or reusable [0047] thereby teaching fully disposable or reuseable or a combination of the two.
It would have been obvious to one or ordinary skill in the art before the effective filing date to have made the garment to be disposable or reuseable or a combination of the two as it is known in the art to do so taught by Coates. Furthermore, not everyone wants to wash a soiled item or carry around a soiled item until they can wash it so disposable options have certain conveniences. On the reverse some people are concerned about waste and want a reuseable option to lessen their environmental impact. The combination article become a middle ground those that are in between.
Regarding claim 16, Coleman fails to teach wherein the pad component is fastened into the body component with Velcro.
Coates teaches a protective undergarment thereby being in the same field of endeavor as the instant claims. Coates discloses the pad can be attached to the garment using any known means in [0029] and in [0032] Coates provides a list of known attachment means to include hook and loop fasteners.
It would have been obvious to one of ordinary skill in the art to have substituted one known fastening mean for another known fastening with a reasonable expectation of success while obtaining predictable results.
Regarding claim 17, Coleman discloses wherein the pad component, when removable, is surrounded by elastic bands at the front and back of the crotch position of the body component which keep the pad component in place ([0043] which discloses the pad is removable and retained by elastic bands).
Regarding claim 18, Coleman discloses wherein the body component comprises a compressible component that is positioned above a waistband of the body component and is made of compressible material and fully wraps around a user’s stomach ([0013] which notes a wide elastic band to provide compression and comfort.
Regarding claim 19, Coleman discloses wherein the compressible component comprises a small pocket, which can hold a portable heating pad ([0014] and [0038] which discloses the addition of a pocket for a heating or cooling pad).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GABRIELLA E BURNETTE whose telephone number is (571)272-9574. The examiner can normally be reached M-S: 0830-1900 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached at (571) 270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GABRIELLA E BURNETTE/Examiner, Art Unit 3781
/REBECCA E EISENBERG/Supervisory Patent Examiner, Art Unit 3781